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Supreme Court urged to scrap quo warranto in lake dispute

Kevin Featherly//November 28, 2019//

Supreme Court urged to scrap quo warranto in lake dispute

Kevin Featherly//November 28, 2019//

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The state’s solicitor general wants the state Supreme Court to scrub a Latin phrase — quo warranto — from Minnesota law.

Not so fast, says government watchdog lawyer Erick Kaardal. If that ancient common-law writ disappears, he said, Minnesotans will find it much harder to challenge government officials who exceed their authority.

Save Lake Calhoun, an interest group that Kaardal represents in court, filed a quo warranto challenge after the DNR rebranded the Minneapolis lake named after John C. Calhoun, South Carolina’s notorious U.S. senator, vice president and slaveholder.

The agency lacked authority to rename that lake Bde Maka Ska, litigants claimed, because state law prohibits changing lake names in continuous usage for more than 40 years. To do that, the group contends, legislative action is needed.

“It is not about politics or being politically correct — it is about the excess of government authority,” Kaardal’s Sept. 16 Supreme Court brief said.

Kaardal lost the case in District Court last year but prevailed at the state Court of Appeals on April 29.

There a three-judge panel ruled that Ramsey County District Court Judge Thomas Gilligan, Jr., got it wrong when he rejected the quo warranto petition. The judges then entered judgment in favor of Save Lake Calhoun, ruling that ex-DNR Commissioner Tom Landwehr had exceeded his authority.

The DNR appealed to the Supreme Court, which heard the case on Nov. 13.

‘It’s unrecognizable’

In oral arguments there, state Solicitor General Liz Kramer told justices that they should not only rule against Save Lake Calhoun, they should abolish the writ outright.

“There’s really no need for the writ anymore,” Kramer told the justices. “It’s unrecognizable and no longer something that’s extraordinary and unique, but is in fact something that’s unnecessary.”

“She’s right,” said state Attorney General Keith Ellison, Kramer’s boss, in an interview last week.

Quo warranto — the Latin translates to “by what authority?” — predates the medieval Crusades and originally allowed English kings to oust imposter barons. There have been several attempts in Minnesota to abolish it, but courts here have preserved its common-law status.

According to Kramer, its originally purpose was to allow Minnesotans to challenge an officeholder’s fitness for the job or a corporation’s right to conduct business. But over time, Kramer argued, its interpretation has expanded beyond all recognition.

By the time of 2007’s Sviggum v. Hanson case, the state Court of Appeals redefined it as “a special proceeding designed to correct the unauthorized assumption or exercise of power by a public official or corporate officer.”

“The expansion of quo warranto has twisted the writ into an almost unrecognizable action that is nearly indistinguishable from a declaratory judgment action,” Kramer’s Supreme Court brief says, “but without the constraints.”

During Nov. 13 oral arguments, however, Chief Justice Lorie Gildea questioned whether that’s anything new. She pointed to Palmer v. Perpich, filed after the historically chaotic opening to the 1971 legislative session. (Lt. Gov. Rudy Perpich, then the Senate’s presiding officer, refused to seat newly elected Sen. Dick Palmer, I-Duluth.)

While that ruling wasn’t decided based on quo warranto, it did find that writ was a valid potential challenge to the activities of a rogue lieutenant governor.

“Clearly,” the Perpich opinion states, “under this provision we have power to determine whether a constitutional officer is attempting to usurp power which is not granted to him by the constitution or by the laws of this state.”

During arguments, Kramer further argued that quo warranto is an “extraordinary legal remedy,” not to be granted if another adequate remedy is available.

Another adequate remedy was available in the Bde Maka Ska case, she said — the state’s 1933 Uniform Declaratory Judgment Act.

That law gives courts the “power to declare rights, status and other legal relations, whether or not further relief is or could be claimed.” In modern times, that law (Minn. Stat. sec. 555) is the right way for Minnesotans to challenge public officials usurping their authority, Kramer said.

“It’s the government’s contention that they should have filed [the case] as a declaratory judgment action?” Gildea asked Kramer.

“I think that the respondent at least should have to show why they couldn’t have brought it as that,” Kramer replied. “And they have not done that.”

Routine failure

Kaardal said he had good reason not to file a declaratory judgment action. Those routinely fail, he said.

“My view is that the Declaratory Judgment Act doesn’t work for ordinary citizens,” Kaardal said. “When we do Declaratory Judgment Act cases, ordinary citizens get dismissed. So I have to bring the quo warranto.”

Unlike the Minnesota Government Data Practices Act, the federal Civil Rights Act or any number of other laws, Minnesota’s Declaratory Judgment Act lacks any specified causes of action.

“What the attorney general is saying is that the Minnesota Declaratory Judgment Act authorizes lawsuits against the government,” Kaardal said. “But that’s not what the law says.”

Kramer acknowledged that the act can’t stand alone as a cause of action. But that doesn’t mean citizens can’t use the statute to sue government officials.

“You have to have a secondary theory, but many plaintiffs come and challenge government actions all the time, as you all well know,” she told the justices. “There are many ways to come to court.”

Ellison, who spoke by phone on Nov. 21, agrees with his solicitor general that the ancient writ’s time has come and gone.

“It’s just the wrong thing,” Ellison said. “It’s the wrong vehicle for what [Kaardal] wants to do. And so, because he got it wrong from the start, he should be bounced.”

Split opinion

A pair of legal experts contacted for this story were split in their opinions. Neither is involved in the case.

David Schultz, the attorney and Hamline University political science professor, sides with Kaardal. “If you get rid of quo warranto, you’d get rid of the ability of the public to question the legal basis for why a government agency or actor has done something,” Schultz said.

It wouldn’t make such challenges impossible, Schultz added. “But you certainly remove one of the tools that’s out there that’s been, I think, quite successful in Minnesota.”

John M. Baker sees things a little differently. Baker is a partner at Greene Espel, PLLP, and Kaardal credits his 1994 William Mitchell Law Review article, “The Minnesota Constitution as a Sword: The Evolving Private Cause of Action,” as helping to shape his thinking about the writ of quo warranto.

Baker is not entirely sure why. His article did predict a kind of judicial train wreck if Minnesota courts fail to settle on a civil remedy for constitutional violations — which they never did. But his article focused on damages and never mentions quo warranto. Nor was the writ on his mind as he wrote it, Baker said.

Baker sees a flaw in Kaardal’s argument. The flaw, he said, is that there is plenty of case law to suggest that quo warranto is not indispensable.

He points to 2008’s Edina Community Lutheran Church v. State. In that declaratory judgment case, several churches successfully knocked down part of Minnesota’s concealed-carry gun law as violating of churches’ freedom-of-conscience rights.

He also flags 2013’s McCaughtry v. Red Wing, which Baker himself defended. While the Institute for Justice lost its facial challenge to Red Wing’s property inspection ordinance at the Minnesota Supreme Court, the declaratory judgment suit was heard by the courts. “They’ve have been doing that without the need to call it ‘quo warranto,’” Baker said.

“For that reason,” he added, “it’s hard for me to go along on the notion that quo warranto needs to exist to vindicate rights created by the state constitution.”

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